‘No, I Can’t…’

By Travis Pickens, OBA Ethics Counsel

Client: “Hey, I appreciate the job you did on collecting that receivable for my company. That guy had been stringing us along for the last three years and thought we would never do anything about it. It’s amazing what some customers will tell you about paying their bills, when they have no intention of doing it!”

Lawyer: “Yes, well, I’m not ‘amazed;’ we lawyers get conned, too, sometimes. Anytime I hear ‘I’m going to get you some money,’ that means if I get paid at all, it will be not enough and no time soon.”

Client: “Hey, I’ve got something else I want to talk to you about. My parents are ready to retire, and I just found out they have not done any estate planning…none at all…. Could you help them with that?”

Lawyer: “Well, I have been thinking of developing a small estate planning practice on the side, something with a lower stress level, but I have really not pursued it because I’ve been too busy with my commercial law practice… I guess I could get up to speed and give your folks a break for being my first real project.”

Client: “I would feel comfortable with you doing it; you have done a great job for my company and are the smartest person I know. You need to know my parents can be difficult, though. They have a small but successful manufacturing business with about 20 employees, an office and land, and expensive equipment. They have saved every spare nickel the last 50 years. They are the kind of people who think a $2 jump in their copay is robbery. They don’t tip the pizza boy and keep food months after the expiration dates. It’s scary. Their idea of a ‘going-nuts night on the town’ is the early-bird special at Golden Corral, followed by the dollar movies. While you and I were ‘letting it ride’ in the stock market, they put all their savings into long-term, low-risk investments. With the value of their business, it’s added up to quite a number, probably $3 - $4 million, not including their house and other things.”

Lawyer: “Well, I could probably do this. There will be some tax issues and succession planning that need to be mulled over, but I’m sure your parents have a CPA they used that I could work with.”

Client: “Accountants would be another ‘extravagance’ to my parents; they rarely used them. Usually, they just hired the book-keeper that did the books for their small church. I would not put much stock in the final product, and God knows what an audit would find.”

Lawyer: “I can’t believe people who hold themselves out as something they are not or represent to people that they can get up to speed on something when they have no time to do so. They just end up procrastinating and causing more harm than good. They are really taking chances with someone else’s money. At least I am telling you I’m not an estate planning lawyer.”

Client: “I’m sure you learned all about this in law school, and it’s no big deal...lots of ready-made documents. You probably can just get someone’s forms and change the names, addresses and dates, and they’ll be good to go.”

Lawyer: “Not exactly, every situation is different. Using someone else’s forms is like using someone else’s power tools; bad things can happen. I will really have to put some time in this to do it right. I probably need to go to several seminars and do a lot of reading. I never took tax class in law school… not my kind of fun, too boring, and I’m not the ‘detail’ type. I’ve got a friend or two who does this, so I can call them with questions, but that may be a hassle because they have busy practices themselves and won’t be able to help on short notice. Plus, I have a couple of major hearings coming up and a trial next month, and another the month after that. Your parents have really done well, and it’s going to take a lot of time and tax planning to do this right...hmm. Maybe, I shouldn’t take this on right now.”

Client: “Up to you, but I would love for you to do it. You’ve done a great job for me over the years. I know you can do this.”

Lawyer: “But business advice and commercial litigation is what I do — and do well. Maybe, I should just stay away from this right now. I go home exhausted from the work I have now and never touch my briefcase. I just fall asleep on the couch after dinner watching TV.

“Maybe right now, the smart thing to say would be simply, ‘No, I can’t.’”

THE MORAL OF THE STORY

We lawyers often think we can do almost any kind of legal work. And most of us probably can, given the time, money and motivation to prepare. Problem is, if you have a relatively busy practice, it is difficult to take the time and make the effort to learn what you need to know in a new area. Significantly, the first substantive rule of the Rules of Professional Conduct is “Competence,” Rule 1.1:

The comments to the rule are helpful. In determining the “requisite knowledge and skill in a particular

matter,” the relevant factors from Comment [1] include:

• the relative complexity and specialized nature of the matter

• the lawyer’s general experience

• the lawyer’s training and experience in the field

• the preparation and study the lawyer can give the matter

• whether it is feasible to refer or associate or consult with a lawyer of established competence in that field.

Comment [2] says new lawyers can be as competent as a practitioner with long experience, although the more experienced lawyer may anticipate more problems and do the work in less time. Interestingly, Comment [3] indicates that “[i]n an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical,” although assistance should be limited to that reasonably necessary in the circumstances.

The level of thoroughness and preparation necessary can vary, depending upon the complexity and consequence of the matter. Rule 1.2 c. allows lawyers to limit the scope of their representation, but two requirements must be met: 1) the client has given their “informed consent” (see ORPC 1.0 e.) and 2) it is reasonable to do so. Sometimes, these requirements are ignored by busy lawyers making snap decisions on behalf of their clients.

Finally, Comment [6] mandates a lawyer “should keep abreast of changes in the law and its practice… ” The legal profession is evolving at a pace never before seen. Advances in technology, newly important legal areas, the increased number of specialized courts, and the dizzying number of laws and local rules that respond to today’s multiplying issues make it increasingly difficult to keep up. I often hear experienced lawyers say they limit their practices to an area or two they really know — and stay out of the rest. These lawyers are generally very good at what they do. Unsurprisingly, these lawyers also seem to be among the happiest in their practices.

About The Author

Travis Pickens serves as OBA Ethics Counsel. He is responsible for addressing ethics questions from OBA members, working with the Legal Ethics Advisory Panel, monitoring diversion program participants, teaching classes and writing articles. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.